Travis v. Waters

Platt, J. The qiiéstion tin this appeal respects,' 1st.. The hosts which accrued prior to the ‘ death of Ezekiel Travis ¡¡ and, 2dly. The costs which have’ arisen since the appellants became parties upon the bill of revivor. ' . ' . ■ In examining ttiti claim for costs which arose prior., let thb abatement of .‘the . .suit, this oon'sideratioh: -is presented ; to.-wit, ■that the duty of conveying the land, which was established by the decree tif fhe 27'th'of Oc<o6’e^T:808;: (ándafter.wards affirmed: in this court,) became separated from the obligation to pay bests, (if any .such:obligation existed,); when the. suit abated by -the death-of-Ezekiel Travis. The conveyance of the, land was due exclusively- to the heirs arid devisees.;.; and1 the costs (if any .were .equitably dtife) could only be claimed by. the executors or admitiistr'atqrs, tif. Ezekiel Travis. - , '■ ■ . Upon examining "the authorities cited on the argument, ■ (Hall v. Smith, 1 Bro. Ch. Cas. 438. White v. Haywood, 2 Ves. 461. 1 Dick. 173. Kemp v. Mackrell, 2 Ves. 580. Morgan v. Scudamore, 3 Ves. 195. Lloyd v. Powis, 1 Dick. 16., and Blower v. Mowets, 3 Atk. 772.,) it appears to be an established •rulé in .equity, that where there has been no decree tor costs; and the' suit abates by the death of the .party,; the fight to, costs,. up to that time-, • is'extihg.uished, unless-the costs'are payable out of a particular fund, or are connected with a duty towards the costs. ■ ‘ According to the aflegatrans in the bill of revivor; in this case) which -was taken pfb confessa, the appellants claim only tin thé - character of heirs and devisees of Ezekiel Travis ; it not being avérred that .any person -had accepted or assumed the office of-executor or administrator. Fit follows, therefore, that thé appellants havenoright to tfre costs which accrued in the •lifetime of Ezekiel Travis;. because those .costs,, if tollo w ábíe,, áre due to his personal representatives■ and .although thé. ex-ecutors might, have -been joined with the heirs and,devisees in the bill of "revivor; yet it is cleat, that they . rimst;- (in shell" ¡case,, be deemed parties for entirely distinct objects. The heirs and devisees sue for the conveyance of the land, and the executors for the costs tif the- original suit only. ' — 507 — To test the rule, therefore, let us suppose that, upon the death of Ezekiel Travis, Waters "had voluntarily conveyed the land to the appellants; and the executors of Ezekiel Travis had then filed .their hill of revivor for costs of the original suit; could the suit have been revived - for the purpose of obtaihing those costs ? I think not. It would have been a bill of revivor for costs only; and as no decree had passed for costs, before the suit abated, the claim for posts moritur cum persona. Whether the executors alone attempt to revive the suit, or •whether they join, with the heirs for that purpose, their object Wpuld be, in both cases,, singly, for costs, unconnected with any other duty as to them; not payable from any fund, and • not within any. ¡of the exceptions to the general rule, which is common to courts of law and equity* that where the suit abates before judgment or decree, the claim for costs is extinguished. It would, therefore, have been useless to have directed the bill to lie over till the executors or administrators, if any, should be made parties:; nor was it necessary for Waters to plead or demur to the bill of revivor, for the want of proper parties, because the claim of the executors for costs must have been unavailing,: Besides, it is never necessary to plead or demur to a bill, if the bill itself contains no. equity, which is the, case in this bill of revivor, in regard to costs in the abated suit. ... - Whether the appellants would have been entitled to the costs tyhich accrued since the death of Ezekiel T^dvis, if their proceedings had been regularly conducted for that object, I deem it unnecessary to decide, It is certain, however, that .a very broad discretion belongs to the chancellor in regard to costs, and that the right to costs is by no means a necessary consequence of the relief prayed for and obtained; on the contrary, there, are many cases, where equity grants the relief s.ought for, Upon condition of paying costs to the defendant. The rule of practice, in equity, is, that if the final decree be silent as .to costs, and the question of costs is not expressly reserved, the court will not listen to a subsequent application for costs, except it be on a reheating upon the merits, which is.sometimes applied for merely.for the purpose of introducing such a reservation as to costs. (Herle v. Greenbank, 1 Dick. 370.) — 508 — A question has been made,, whether the decree of 'the 31st of May,. 18:13,. was'final pf interlocutory ? . According to Harrison's Practice in Chancery, (622.,) “A decree is final, when all the circumstances and facts material and necessary lo. "a complete explanation of the. matters in litigation .are brought before the court, and so fully and clearly ascertained by the pleadings on both' sides, that ‘the j court is enabled', from them, to collect the respective merits of the parties litigant, and upon full consideration of the case made opt and relied upon by each, determines between them, 'according to equity and good conscience.” . ‘.'.A decreé' i^interlocutory, when"it happens.that some •material circumstance or fact, necessary to be made known fo the court, is either not stated in the pleadings, or so imperfectly ascertained by them, that the court, by-reason, of-■ dipt defect, is unable to determine finally between the parties'; and,- there* fore,' a reference to,-or an inquiry before, a"master, or a trial of the facts before a jury, becomes necessary tó.have the doubts occasioned by that defect removed. The court, in the mean time, suspends itsfinal, judgment, until,; by the.master’is report, or the verdict of a jury, if is enabled to decide finaliyM According to these definitions, it seems to me his honour, the chancellor,.' was correct in deciding; that .the order of the 31st of'May,. 1813, is to be regarded as the final decree in this cause. V ^ '■ ' By the bill, Tryvis .claimed1 a conveyance for the whole parcel of land originally contracted for, and insisted upon certain .'pay ments in‘money,; Ox;en, and turnips. , By the' answer,. Waters denied any payments made on account of the land ; and, as to part of. the premises in question, he alleged, as a defence, that lie had) with tire consent of Ezekiel Travis, conveyed 50 acres of it to one person, and 150 acres to another, (not naming who those persons were.) ■ • •' i.. All. the facts stated by way of excusé, or defence, in the an*. ■ swer, were put at issue by a general replication.. : The chancelfor ordered a trial óf feigned issues; - to- ascertain, • "... •' 1st- .Whether Travis paid,'6Q pounds, in Máyj-1787, . as. part consideration of these lands ?. ■ . -y . .. 2d. Whether, in dime,. 1.807, Travis,, iri l:ike..m£inner;. paid: 12 pounds ? " ■ ' . . .. . ■ — 509 — 3d. Whether, in November, 1807,. Travis, in like manner, paid a yoke of oxen, valued at 16 pounds ? . . The verdict upon each of these issues was in favour of Travis, thereby establishing the fact of those three payments, on account of this land, at the times there stated; but it must here be remarked, that the two other material facts put in issue by the pleadings,, were perfectly unascertained, when the chancellor made the decree of the 27th of October, 1808. By the appellant’s case, it is expressly stated, that “ the defendant below made no proof of the conveyances alluded to in his answer, nor of the partition with David Johnson, nor qf any other conveyances, except that two discredited witnesses .said, in general terms, that Waters had sold so many acres of this land with Travis’s consent.” Nor was there any inquiry made, nor any evidence received, upon the interrogatories in the cause, in regard to the quantity or value of the turnips stated to have been delivered in part payment for the land. By the interlocutory decree (as I consider it) of the 27th of October, 1308, it was ordered, “ that the defendant convey to the complainant, in fee, and in severalty,, by a good and sufficient deed in the- law, so much of the lands contained in said lot, No. 39, not exceeding three fourths of one half of the said lot, as the said defendant hath not become incapacitated to convey, by reason of the partition, and of the release- and conveyances aforesaid; and that it be referred to a master to-take an account of the quantity of land, part of said lot, which is to be conveyed as aforesaid.” And, further, that, the master state an account, charging the land at eight shillings per acre, with, interest,- and crediting the three several payments found upon the feigned issue, with interest; and, also, directing the master to report as to the amount of the turnips sold by Travis to Waters. This reference to the master, therefore, was not merely to calculate interest, and state an account upon/®ed dataon the contrary, that reference involved an inquiry, by the master, whether Travis had, or had not, made a payment in turnips, oft account of the land ; and, if any, to what amount ? .It also involved, not .merely a survey, but an inquiry whether Waters had executed a deed or deeds of conveyance for any part, and how much, of the premises ip question, to any other person, as — 510 — sel forth in his answer; no such conveyance ever having been or exhibited. ft is clear, therefoi*e, '.that,, -by the pleadings, - and-the facts found .by the verdict on the feigned issues., it did Lot fully appear how much had-been paid by Ezekiel Travis,, on account ef the land; nor did'it' appear how much of the land contracted-for, Waters remained capacitated to: convey. These essential facts remained to be ascertained by the. master’s report, before o. final decree could bs pronounced, The decree of the 31st of May, 18.13,, was founded on the master’s report, and the other interlocutory proceedings in. the .cause. It finally settled the respective rights of the. parlies, •upon the whole merits; and consummated; the suit; by ordering Waters, upon payment to him of 13 dollars and 34. cents, to convey to the appellants, the parcel of land in the said report, particularly mentioned arid described,’!' in the proportions previously settled. ■ This decree was taken by the appellants ex parte, as advised by their counsel.; and must be 'considered As. allowing-fhem' all that they asked for, No further equity was reserved. The appellants paid to Waters the balance repprted -to be due: to him,, pud he obeyed the decree in executing the conveyance to' them. As 1 understand the practice; the solicitor for-the,- cómplafof ant's was irregular- in entering that order or decree, ecó:parte, 'in .vácaiio.n, zuithout notice to Ms adversary. Waters might have obtained an order'to vacate if fqr irregularity but he! waived that objection; tho| is,'he admitted the. decree to be of the.same force and effect, as . if it had been entered, upon a hearing after regular .notice, ' ’ 'According, therefore, to the -settled practice in chancery, ■which, is similar'in ahalogdüs -pfócéecRbgs. ^t'-law,"-the.dláiniTor' costs was waived by .the appellants in taking a final decree'for the land.without reservation : and that claim could n^ver be’re-'. vlved, but upon an application' to open- the final decree upon its. merits. Such an application was -never made: on the ,contrary, the-.appellants" actually d'ematided,1 and accepted!- a performance' of that decree; . and after .the •.decree wa.s- thus completely executed,‘a rehearing, If applied-for,!- would not (1 presume) have been gratited. . . ‘ " ' 1 j am not prepared to say, that an appeal-, will not lie, in any ,p|se?'tir costs But, in fhjs case, the-.motion for' icosts Is — 511 — to be considered as an application' to be reinstated in a claim which had been waived ; or as a motion to excuse a loches or default of the party claiming costs: and, in that view, I think the order of the chancellor, refusing such indulgence upon a point of practice merely, is not a subject of appeal under our constitutian, and the statute regulating appeals. By that statute, “ any person aggrieved by any order or decree in chancery, may appeal,” &c. To be “ aggrieved,n is to be “ injured in one’s right f and a person who waives his claim, suffers damnum absque injuria, and cannot be legally said to be “ aggrieved The appellants have lost their right to claim costs, by their own loches, or default, in not asserting their claim according to the regular course of proceeding in chancery: and in the late, case of Sands v. Hildreth, in this court, it was decided, that if a party be concluded of his rights by his own default in the court below, this court will not sustain an appeal for the purpose of reinstating him. I am, therefore, of opinion, that the order appealed from ought to be affirmed. Thompson, Ch. J., Van Ness, J., and Yates, J., were pf the same opinion. Arnold, Bicknell, Cantine, Rabcliff, .Stewart, Tibbits, and Verbryck, Senators, also concurred. Spencer, J., said, that as to the preliminary question, he thought the Engtish House of Lords would not entertain an appeal for costs merely. It was, however, more a question of practice than principle; and though appeals ought not to be encouraged, he was inclined to the opinion, that, under the pro-, visions of our statute, an appeal might lie from a decree for Costs. As to that part of the decree of the chancellor, relative to the costs which accr'tied during the lifetime of Ezekiel Travis, he thought it correct: but as to the costs subsequent to the bill of revivor, he was of opinion, that the decree, so far as respected the disallowance of those .costs, ought to be reversed. — 512 — ' Clark, Crosby, Prendergast, Ross, Swift, Tabor, Van Schoonhoven, and Wendell, Senators, concurred. A. majority ofthe court being of opinion, 'that the .decree-of; the court of chancery ought to be affirmed,- it was thereupon -ordered, Adjudged, and decreed, that; the decree, of th;e court of chancery be affirmed; that the petition and appeal be.-dismisséd, and that the appellants pay fo the respondent‘his costs, to be taxed by the clerk of this Court; and -that the respondent have his execution..therefore out of the court of chancery; arid that the record be remitted, &c.. ^ ' - ■ Judgffient.dfaffirmance.